Baker v. Ryan et al

Filing 20

ORDER ADOPTING 18 Report and Recommendations ; Petitioner's § 2254 habeas petition is denied, case is dismissed with prejudice. Certificate of Appealability is denied. Clerk of the Court shall enter judgment and close file. Signed by Judge Jennifer G Zipps on 6/12/12. (SMBE)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Lee Baker, Petitioner, 10 11 vs. 12 Charles Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-370-TUC-JGZ (BPV) ORDER 15 16 Pending before the Court is a Report and Recommendation issued by United States 17 Magistrate Judge Bernardo P. Velasco that recommends denying Petitioner’s habeas petition 18 filed pursuant to 28 U.S.C. §2254. As throughly explained by Magistrate Judge Velasco, 19 Petitioner is not entitled to relief as his petition is untimely.1 As Petitioner’s objections do 20 not undermine the analysis and proper conclusion reached by Magistrate Judge Velasco, 21 Petitioner’s objections are rejected and the Report and Recommendation is adopted. 22 Before Petitioner can appeal this Court's judgment, a certificate of appealability must 23 issue. See 28 U.S.C. §2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of Appellate 24 Procedure 22(b) requires the district court that rendered a judgment denying the petition 25 26 27 28 1 The Court reviews de novo the objected-to portions of the Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 1 made pursuant to 28 U.S.C. §2254 to "either issue a certificate of appealability or state why 2 a certificate should not issue." Additionally, 28 U.S.C. §2253(c)(2) provides that a certificate 3 may issue "only if the applicant has made a substantial showing of the denial of a 4 constitutional right." In the certificate, the court must indicate which specific issues satisfy 5 this showing. See 28 U.S.C. §2253(c)(3). A substantial showing is made when the 6 resolution of an issue of appeal is debatable among reasonable jurists, if courts could resolve 7 the issues differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 8 529 U.S. 473, 484-85 (2000). Upon review of the record in light of the standards for 9 granting a certificate of appealability, the Court concludes that a certificate shall not issue 10 as the resolution of the petition is not debatable among reasonable jurists and does not 11 deserve further proceedings. 12 Accordingly, IT IS HEREBY ORDERED as follows: 13 (1) The Report and Recommendation (Doc. 18) is accepted and adopted. 14 (2) Petitioner’s §2254 habeas petition is denied and this case is dismissed with prejudice. 15 (3) A Certificate of Appealability is denied and shall not issue. 16 (4) The Clerk of the Court shall enter judgment accordingly and close the file in this matter. 17 DATED this 12th day of June, 2012. 18 19 20 21 22 23 24 25 26 27 28 -2-

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